holding that fraud sufficient to void a contract must relate to a material matter in the contract
How later courts described this case
- holding that fraud sufficient to void a contract must relate to a material matter in the contract
Written by the judges who cited it.
The opinion
NICHOLS, P. J.,
concurring.
I concur in the affirmance of the judgment of the Common Pleas Court. It is apparent to me that the Superintendent of Schools did not have authority to discharge the teacher. It is further apparent that in adopting the resolution of January 5, 1842, the Board of Education did not terminate or intend to terminate the teacher’s continuing contract. That resolution specifically states that the action of the board is contingent or dependent upon the decision of the Supreme Court in an action then pending there involving the right of a teacher to such contract even though the teacher be married and the board have a rule against the employment of married teachers.
The case then pending was evidently that of State, ex reí., Brown, v Board of Education, 139 Oh St., 436. The Supreme Court decided that case in favor of the married teacher dn March 25, 1942, and thereafter the board of education on May 14, 1942, took the steps required by statute for the termination of this teacher’s contract.
The case of Greco v Board of Education, 145 Oil St, 243, had not been instituted in the courts at that time and could not have been the case referred to by the board in adopting its resolution or by the teacher in her testimony as to what occurred when she disclosed to the Superintendent of Schools the fact of her marriage.
*86 This court held in the Greco case, and our decision was affirmed by the Supreme Court,, that the board of education could lawfully adopt the rule against the employment of married teachers and enforce such rule by following the statutory procedure to terminate a teacher’s contract for violation thereof. This the appellant in this case did not do until appellee had performed all of the duties of a teacher in the schools of defendant for the year involved in this litigation. The board has the option to enforce such rule but is not required so to do.
It appears to me that the board of education, under the circumstances shown by the record in this case, waived its right to consider the contract terminated at the time the teacher disclosed her marital status and did not avail itself of its statutory right to terminate the contract until all of appellee’s services had been performed and the board had received the benefit thereof.